This week we get a “hairy” case from the United States Court of Appeals for the First Circuit. African-American former Boston police officers, a former cadet and others who tested positive for cocaine use claimed that the department’s use of hair samples to test for drug use had a disparate impact on blacks. The plaintiffs denied any use of illegal drugs and argued that hair common to many blacks resulted in false-positives. The trial court granted summary judgment to the department, but the court of appeals reinstated the case.

Disparate impact cases do not require a showing that the employer intentionally discriminated. The legal theory underlying disparate impact is that a specific employment practice has greater impact on the protected class. Statistical analysis is usually required to establish these claims. The plaintiffs presented statistical evidence that the results of hair sample testing over an 8-year period were not due to random chance, meaning that the use of hair samples could be the factor that caused more blacks than whites to appear to be using illegal drugs.

The court of appeals ultimately sent the case back to the trial court to finish what remained of the legal analysis. All the court of appeals did was decide that plaintiffs had presented a prima prima facie case of disparate impact discrimination. On remand, the trial court will have to determine whether the department’s drug-testing program advances its legitimate goal of weeding out illegal drug users, and then whether plaintiffs have proved the department’s failure to adopt an available alternative method of testing that advances the legitimate goal and reduces the disparate impact on blacks. Jones v. City of Boston, Case No. 12-2280 (1st Cir., May 7, 2014).